Citation Nr: 1012220
Decision Date: 04/01/10 Archive Date: 04/14/10
DOCKET NO. 08-00 320A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an evaluation in excess of 20 percent for
lumbosacral strain.
2. Entitlement to an evaluation in excess of 20 percent for
chronic neck strain.
3. Entitlement to an evaluation in excess of 10 percent for
chondromalacia with early degenerative joint disease of the
right knee.
4. Entitlement to an evaluation in excess of 10 percent for
chondromalacia of the left knee.
5. Entitlement to a total rating based on individual
unemployability due to service-connected disabilities
(TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and E.B.
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Associate Counsel
INTRODUCTION
The Veteran had honorable active service from November 1973
to April 1988. She also had a period of service from April
1988 to June 1989 that has been characterized as other than
honorable.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida.
In November 2009, the Veteran and E.B. testified at a Travel
Board hearing before the undersigned Veterans Law Judge. A
transcript of this hearing is associated with the claims
folder.
FINDINGS OF FACT
1. The Veteran's lumbosacral strain manifests a forward
flexion of greater than 30 degrees, has not resulted in
ankylosis, and has not resulted in periods of bed rest
prescribed by a physician.
2. The Veteran's chronic neck strain manifests a forward
flexion of greater than 15 degrees, has not resulted in
ankylosis, and has not resulted in periods of bed rest
prescribed by a physician.
3. The Veteran's chondromalacia with early degenerative
joint disease of the right knee manifests flexion of greater
than 30 degrees, extension of 15 degrees or less, has not
resulted in ankylosis, and has no objective evidence of any
instability or subluxation.
4. The Veteran's chondromalacia of the left knee manifests
flexion of greater than 30 degrees, extension of 15 degrees
or less, has not resulted in ankylosis, and has no objective
evidence of any instability or subluxation.
5. The Veteran's service-connected disabilities include:
total hysterectomy, currently evaluated as 50 percent
disabling, effective October 1, 1997; depression associated
with lumbosacral strain, currently evaluated as 30 percent
disabling, effective February 20, 2008; lumbosacral strain,
currently evaluated as 20 percent disabling, effective
October 1, 1997; chronic neck strain, currently evaluated as
20 percent disabling, effective April 5, 2005; right ear
hearing loss, currently evaluated as 10 percent disabling,
effective October 1, 1997; chondromalacia with early
degenerative joint disease of the right knee, currently
evaluated as 10 percent disabling, effective January 8,
1998; and chondromalacia of the left knee, currently
evaluated as 10 percent disabling, effective February 19,
2004; and currently is assigned a combined disability
evaluation of 80 percent.
6. The preponderance of the medical evidence does not
demonstrate that the Veteran's service-connected
disabilities render her unable to secure or follow a
substantially gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for a disability rating in excess of 20
percent disabling for lumbosacral strain have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.159, 38 C.F.R. § 4.71a, Diagnostic Codes 5237,
5242, 5243 (2009).
2. The criteria for a disability rating in excess of 20
percent disabling for chronic neck strain have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.159, 38 C.F.R. § 4.71a, Diagnostic Codes 5237,
5242, 5243 (2009).
3. The criteria for a disability rating in excess of 10
percent for chondromalacia with early degenerative joint
disease of the right knee have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159,
38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5014, 5256, 5257,
5258, 5259, 5260, 5261, 5262, 5263 (2009).
4. The criteria for a disability rating in excess of 10
percent for chondromalacia of the left knee have not been
met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.159, 38 C.F.R. § 4.71a, Diagnostic Codes 5003,
5014, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2009).
5. The criteria for entitlement to TDIU are not met. 38
U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp.
2009); 38 C.F.R. §§ 3.159, 3.321, 3.341, 4.16, 4.19, 4.25
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Higher Evaluation
Disability evaluations are determined by the application of
a schedule of ratings which is based on average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Disabilities must be reviewed in relation to their history.
38 C.F.R. § 4.1. Other applicable, general policy
considerations are: interpreting reports of examination in
light of the whole recorded history, reconciling the various
reports into a consistent picture so that the current rating
may accurately reflect the elements of disability, 38 C.F.R.
§ 4.2; resolving any reasonable doubt regarding the degree
of disability in favor of the claimant, 38 C.F.R. § 4.3;
where there is a question as to which of two evaluations
apply, assigning a higher of the two where the disability
picture more nearly approximates the criteria for the next
higher rating, 38 C.F.R. § 4.7; and, evaluating functional
impairment on the basis of lack of usefulness, and the
effects of the disabilities upon the person's ordinary
activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1
Vet. App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
However, when an appeal arises from the initially assigned
rating, consideration must be given as to whether staged
ratings should be assigned to reflect entitlement to a
higher rating at any point during the pendency of the claim.
Fenderson v. West, 12 Vet. App. 119 (1999). Moreover,
staged ratings are appropriate in any increased-rating claim
in which distinct time periods with different ratable
symptoms can be identified. Hart v. Mansfield, 21 Vet. App.
505 (2007).
Pyramiding, the evaluation of the same disability, or the
same manifestation of a disability, under different
diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. It
is possible, however, for a Veteran to have separate and
distinct manifestations attributable to the same injury,
which would permit a rating under several diagnostic codes.
The critical element permitting the assignment of multiple
ratings under several diagnostic codes is that none of the
symptomatology for any one of the conditions is duplicative
or overlapping with the symptomatology of the other
condition. Esteban v. Brown, 6 Vet. App. 259, 261-62
(1994).
Although the Board has reviewed in detail the six volumes of
lay and medical evidence, the Board will focus on the
evidence that addresses the severity of the Veteran's
condition. See Newhouse v. Nicholson, 497 F.3d 1298, 1302
(Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000).
When there is an approximate balance of positive and
negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
A. Lumbosacral Strain and Chronic Neck Strain
The Veteran seeks entitlement to an evaluation in excess of
20 percent disabling for lumbosacral strain and entitlement
to an evaluation in excess of 20 percent disabling for
chronic neck strain. The schedular criteria for rating the
spine have been amended twice; once in September 2002, and
again in September 2003. However, as the Veteran filed her
claim for an increased rating of her lumbosacral strain and
chronic neck strain conditions in May 2006, only the most
recent criteria are to be applied.
Effective September 26, 2003, disabilities of the spine are
rated under the General Rating Formula for Diseases and
Injuries of the Spine (for Diagnostic Codes 5235 to 5243,
unless 5243 is evaluated under the Formula for Rating
Intervertebral Disc Syndrome Based on Incapacitating
Episodes). Ratings under the General Rating Formula for
Diseases and Injuries of the Spine are made with or without
symptoms such as pain (whether or not it radiates),
stiffness, or aching in the area of the spine affected by
residuals of injury or disease. The disabilities of the
spine that are rated under the General Rating Formula for
Diseases and Injuries of the Spine include vertebral
fracture or dislocation (Diagnostic Code 5235), sacroiliac
injury and weakness (Diagnostic Code 5236), lumbosacral or
cervical strain (Diagnostic Code 5237), spinal stenosis
(Diagnostic Code 5238), spondylolisthesis or segmental
instability (Diagnostic Code 5239), ankylosing spondylitis
(Diagnostic Code 5240), spinal fusion (Diagnostic Code
5241), and degenerative arthritis of the spine (Diagnostic
Code 5242) (for degenerative arthritis of the spine, see
also Diagnostic Code 5003).
The General Rating Formula for Diseases and Injuries of the
Spine provides a 10 percent disability rating for forward
flexion of the thoracolumbar spine greater than 60 degrees
but not greater than 85 degrees; or, forward flexion of the
cervical spine greater than 30 degrees but not greater than
40 degrees; or, combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater
than 235 degrees; or, combined range of motion of the
cervical spine greater than 170 degrees but not greater than
335 degrees; or, muscle spasm, guarding, or localized
tenderness not resulting in abnormal gait or abnormal spinal
contour; or, vertebral body fracture with loss of 50 percent
or more of the height. A 20 percent disability rating is
assigned for forward flexion of the thoracolumbar spine
greater than 30 degrees but not greater than 60 degrees; or,
forward flexion of the cervical spine greater than 15
degrees but not greater than 30 degrees; or, the combined
range of motion of the thoracolumbar spine not greater than
120 degrees; or, the combined range of motion of the
cervical spine not greater than 170 degrees; or, muscle
spasm or guarding severe enough to result in an abnormal
gait or abnormal spinal contour such as scoliosis, reversed
lordosis, or abnormal kyphosis. A 30 percent disability
rating is assigned for forward flexion of the cervical spine
15 degrees or less; or, favorable ankylosis of the entire
cervical spine. A 40 percent disability rating is assigned
for unfavorable ankylosis of the entire cervical spine; or,
forward flexion of the thoracolumbar spine 30 degrees or
less; or, favorable ankylosis of the entire thoracolumbar
spine. A 50 percent disability rating is assigned for
unfavorable ankylosis of the entire thoracolumbar spine. A
100 percent disability rating is assigned for unfavorable
ankylosis of entire spine. 38 C.F.R. § 4.71a.
The Notes following the General Rating Formula for Diseases
and Injuries of the Spine provide further guidance in rating
diseases or injuries of the spine. Note (1) provides that
any associated objective neurologic abnormalities,
including, but not limited to, bowel or bladder impairment,
should be rated separately under an appropriate diagnostic
code. Note (2) provides that, for VA compensation purposes,
normal forward flexion of the cervical spine is zero to 45
degrees, extension is zero to 45 degrees, left and right
lateral flexion are zero to 45 degrees, and left and right
lateral rotation are zero to 80 degrees. Normal forward
flexion of the thoracolumbar spine is zero to 90 degrees,
extension is zero to 30 degrees, left and right lateral
flexion are zero to 30 degrees, and left and right lateral
rotation are zero to 30 degrees. The combined range of
motion refers to the sum of the range of forward flexion,
extension, left and right lateral flexion, and left and
right rotation. The normal combined range of motion of the
cervical spine is 340 degrees and of the thoracolumbar spine
is 240 degrees. The normal ranges of motion for each
component of spinal motion provided in this note are the
maximum that can be used for calculation of the combined
range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note
(3) provides that, in exceptional cases, an examiner may
state that because of age, body habitus, neurologic disease,
or other factors not the result of disease or injury of the
spine, the range of motion of the spine in a particular
individual should be considered normal for that individual,
even though it does not conform to the normal range of
motion stated in Note (2). Provided that the examiner
supplies an explanation, the examiner's assessment that the
range of motion is normal for that individual will be
accepted. Note (4) provides that the rater is to round each
range of motion measurement to the nearest five degrees.
Note (5) provides that, for VA compensation purposes,
unfavorable ankylosis is a condition in which the entire
cervical spine, the entire thoracolumbar spine, or the
entire spine is fixed in flexion or extension, and the
ankylosis results in one or more of the following:
difficulty walking because of a limited line of vision;
restricted opening of the mouth and chewing; breathing
limited to diaphragmatic respiration; gastrointestinal
symptoms due to pressure of the costal margin on the
abdomen; dyspnea or dysphagia; atlantoaxial or cervical
subluxation or dislocation; or neurologic symptoms due to
nerve root stretching. Fixation of a spinal segment in
neutral position (zero degrees) always represents favorable
ankylosis. Note (6) provides that disability of the
thoracolumbar and cervical spine segments are to be rated
separately, except when there is unfavorable ankylosis of
both segments, which will be rated as a single disability.
38 C.F.R. § 4.71a.
Under Diagnostic Code 5243, intervertebral disc syndrome may
be rated under either the General Formula or under the
Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes. Under the Formula for Rating
Intervertebral Disc Syndrome, incapacitating episodes having
a total duration of at least one week but less than 2 weeks
during the past 12 months warrants a rating of 10 percent.
Incapacitating episodes having a total duration of at least
2 weeks but less than 4 weeks during the past 12 months
warrants a rating of 20 percent. Incapacitating episodes
having a total duration of at least 4 weeks but less than 6
weeks during the past 12 months warrants a rating of 30
percent. Incapacitating episodes having a total duration of
at least 6 weeks during the past 12 months warrants a rating
of 60 percent.
Note (1): For purposes of evaluating under diagnostic code
5243, an incapacitating episode is a period of acute signs
and symptoms due to intervertebral disc syndrome that
requires bed rest prescribed by a physician and treatment by
a physician.
Note (2): If intervertebral disc syndrome is present in more
than one spinal segment, provided that the effects in each
spinal segment are clearly distinct, evaluate each segment
on the basis of incapacitating episodes or under the General
Rating Formula for Diseases and Injuries of the Spine,
whichever method results in a higher evaluation for that
segment.
In June 2005 the Veteran was reported to have chronic back
pain.
In October 2005 the Veteran was afforded a VA Compensation
and Pension (C&P) spine examination. The Veteran complained
that the she has a stiff pulling pain in her neck that
radiated down to her shoulders bilaterally. Upon extremity
examination the Veteran's upper extremities were noted to be
4.5 out of 5 bilaterally secondary to pain at her joints
with movement and pulling in her shoulders. There were no
pinprick or light touch deficits. Rapid alternating
movements were intact. There was not thenar or interosseous
atrophy. Deep tendon reflexes of the biceps, brachialis and
triceps were 2 out of 4. There was negative Hoffman.
Cervical spine examination revealed midline nontender to
palpation. However significant paraspinal spasm and
tenderness noted bilaterally left greater than right. Range
of motion of the cervical spine was 30 degrees of forward
flexion, 30 degrees of extension, 20 degrees of left lateral
flexion and 30 degrees of right lateral flexion, and 50
degrees of left and right lateral rotation. Indicated that
flare-ups probably worsen the condition by 30 percent.
In October 2005 the Veteran underwent a VA X-ray of the
lumbar spine that revealed no abnormality of the lumbar
spine.
In October 2005 the Veteran was afforded a VA C&P joints
examination regarding a claim for hip conditions. The
Veteran complained of bilateral hip pain and buttocks pain
that had some radiation down the back of both legs. The
examiner diagnosed the Veteran, in part, with bilateral
buttocks pain. The examiner rendered the opinion that the
Veteran's bilateral buttocks pain was at least as likely as
not related to the Veteran's lumbar condition.
In a treatment note, dated in December 2005, the Veteran was
reported to have a negative straight leg test with good deep
tendon reflexes in the lower extremities. Equivocal
swelling of the right knee, no warmth or erythema or
effusion. In January 2006 the Veteran underwent a VA
magnetic resonance imaging (MRI) scan of the back. The scan
revealed moderate canal stenosis, mild bilateral foraminal
stenosis at the L5/S1 level due to broad based central
spondylitic protrusion with facet and ligament flavum
hypertrophy, and mild spondylosis at L3-L4 and L4-L5. In a
treatment note, dated in March 2006, the Veteran was
reported to complain of low back and bilateral leg pain.
Physical examination revealed tenderness in the bilateral
low back and a positive Patrick's test bilaterally. In May
2006 the Veteran was reported to complain of low back pain
with left lower extremity radiculopathy. In June 2006 the
Veteran underwent an X-ray examination of the cervical spine
due to complaints of chronic neck pain. The X-ray revealed
that the cervical vertebrae, disc spaces, and posterior
elements that were essentially normal except for minimal
degenerative changes and it was noted that the paravertebral
soft tissues were unremarkable.
In December 2006 the Veteran was afforded a VA C&P spine
examination. Physical examination of the cervical spine of
40 degrees of forward flexion, 40 degrees of extension, 35
degrees of right lateral flexion, 40 degrees of left lateral
flexion, 60 degrees of right rotation, and 70 degrees of
left rotation. There was no tenderness to palpation along
the spinous or transverse process. There was tenderness
along the paraspinal musculature bilaterally. There was
mild pain with flexion and extension of the cervical spine.
There was no radiating pain into the upper extremities, no
sensory deficits, no motor deficits, and no bowel, bladder
or erectile dysfunction. Spurling's test and Hoffman's test
were negative. Clonus was within normal limits. Upper
extremity strength was 5/5 and upper extremity reflexes were
2+/4 globally and symmetric.
Physical examination of the thoracolumbar spine revealed 75
degrees of forward flexion, 20 degrees of extension, 20
degrees of right lateral flexion, 25 degrees of left lateral
flexion, 20 degrees of right rotation, and 25 degrees of
left rotation. There was no tenderness to palpation along
the spinous or transverse processes. There was mild
tenderness bilaterally along the paraspinal musculature.
There was no pain radiating into the lower extremities, no
sensory deficits, no motor deficits, no bowel, bladder or
erectile dysfunction, and no gait dysfunction. The straight
leg raise was negative bilaterally. Babinsky as downgoing
bilaterally. Clonus was within normal limits. Lower
extremity strength was 5/5 and lower extremity reflexes were
2+/4 globally and symmetric.
The examiner diagnosed the Veteran was osteoarthritis of the
cervical spine and degenerative disc disease of the lumbar
spine. The examiner noted that there was excess
fatigability and pain with use of the cervical spine and
lumbar spine. There was not weakened movement or
incoordination in either the cervical or lumbar spine.
Repetitive exercise resulted in a loss of 10 degrees of
function range of motion in rotation in the cervical and
lumbar spines. The examiner rendered the opinion that the
Veteran was capable of working without heavy lifting,
squatting or frequent bending.
In treatment noted, dated November 2006 to February 2007,
the Veteran was noted to receive treatment from a VA
chiropractor. The treatment records reveal that the Veteran
was treated for neck and back pain including tight muscles,
spasms, and point tenderness in the back. The Veteran was
diagnosed with paraspinal hypertonicity and point tenderness
at C4-C6 bilaterally. Hypermobility of the C4-C6 cervical
segments, suboccipital muscles tight bilaterally. The
Veteran reported that her neck can go into spasm while
turning quickly.
In a treatment note, dated in May 2007, the Veteran's
cervical thoracic and lumbar spines were noted to be normal.
In a treatment record dated in August 2007 the Veteran
denied radiating pain in the low back and did not report any
leg numbness or weakness. The Veteran reported chronic neck
pain radiating into the left arm. The Veteran's cervical
spine and upper thoracic spine regions were noted to be
tender and her lumbar paraspinous muscle region and
sacroiliac joints were tender bilaterally. The Veteran was
noted to be ambulating with a wheeled walker. In December
2007 the Veteran was noted to have upper and lower extremity
ranges of motion that were grossly within normal limits.
Upper extremity strength was noted to be grossly within
normal limits and lower extremity strengths were 3/5 at the
hips and 4/5 otherwise.
The Veteran was afforded a VA C&P spine examination in March
2009. The examiner noted that there was no history of
hospitalization, surgery, trauma, neoplasm, urinary
incontinence, urinary urgency, retention requiring
catheterization, urinary frequency, nocturia, fecal
incontinence, numbness, paresthesias, leg or foot weakness,
falls, or unsteadiness. There was no history of fatigue,
decreased motion, or weakness. The examiner reported that
there was a history of stiffness, spasms, and pain. Pain
occurring in the back of the neck and across the lumbosacral
area. The pain was described as tight in the neck and
sharp/spasm in the lumbosacral area. The pain was stated to
be moderate and daily without radiation. Posture was
normal, head position was normal, and the back was
symmetrical in appearance. The Veteran's gait was antalgic.
There was no gibbus, kypohosis, list, lumbar flattening,
lumbar lordosis, scoliosis, reverse lordosis, cervical
ankylosis, or thoracolumbar ankylosis.
Physical examination of the muscles of the spine revealed
bilateral spasm, guarding, pain with motion, and tenderness
bilaterally in the cervical sacrospinalis. There was no
atrophy or weakness in the cervical sacrospinalis. Physical
examination of the muscles of the thoracic sacrospinalis
revealed spasm, guarding, pain with motion, and tenderness
bilaterally. There was no atrophy or weakness. Muscle
spasms, local tenderness, and guarding were not severe
enough to be responsible for an abnormal gait or abnormal
spine contour. Elbow flexion, elbow extension, wrist
flexion, wrist extension, finger flexors, finger abduction,
thumb opposition, hip flexion, hip extension, knee
extension, ankle dorsiflexion, ankle plantar flexion, and
great toe extension were all 5/5. Muscle tone was normal
and there was no muscle atrophy. Sensory examination of the
upper and lower extremities was normal to vibration, pain,
light touch, and position. Reflexes of the biceps, triceps,
brachioradialis, knee jerk, ankle jerk and plantar were
normal.
Examination of the range of motion of the cervical spine
revealed 45 degrees of flexion, 45 degrees of extension, 45
degrees of left lateral flexion, 45 degrees of right lateral
flexion, 70 degrees of left lateral rotation, and 70 degrees
of right lateral rotation. There was evidence of pain on
active range of motion. Pain was described as a "stretch."
There was objective evidence of pain following repetitive
motion but no additional limitations after three repetitions
of range of motion.
Examination of the range of motion of the thoracolumbar
spine revealed 90 degrees of flexion, 30 degrees of
extension, 30 degrees of left lateral flexion, 30 degrees of
left lateral rotation, 30 degrees of right lateral flexion,
and 30 degrees of right lateral rotation. There was
evidence of pain on active range of motion. The pain was
described as a stretch and there was objective evidence of
pain following repetitive motion but no additional
limitations after three repetitions of range of motion.
Lasegue's sign was negative. The Veteran was diagnosed with
lumbar strain with a normal X-ray, neck strain, and mild
degenerative disc disease of the cervical spine and mild
spondylosis of the cervical spine. The examiner noted that
the Veterans' conditions had no effect on the Veteran's
ability to perform feeding, bathing, dressing, toileting,
and grooming, a mild effect on the Veteran's ability to
perform chores, shopping, and traveling, a moderate effect
on the Veteran's ability to perform exercise, and a severe
effect on the Veteran's ability to perform sports.
In a treatment note, dated in April 2009, subjective reports
of pain in the low back radiating into the buttocks with no
leg numbness or weakness and tingling in the left calf were
noted.
The Board finds that entitlement to an evaluation in excess
of 20 percent disabling for the orthopedic manifestations of
the Veteran's lumbosacral strain is not warranted. The
Veteran's treatment records reveal that at no point during
the period on appeal did the Veteran's lumbosacral strain
condition manifest forward flexion of 30 degrees or less, or
any ankylosis. In addition, at no point during the period
on appeal did the Veteran's lumbosacral strain condition
manifest any periods of incapacitation requiring physician
prescribed bed rest. As such, entitlement to an evaluation
in excess of 20 percent disabling for the orthopaedic
manifestations of the Veteran's lumbosacral strain is
denied.
The Board finds that entitlement to an evaluation in excess
of 20 percent disabling for the orthopedic manifestations of
the Veteran's chronic neck strain is not warranted. The
Veteran's treatment records reveal that at no point during
the period on appeal did the Veteran's chronic neck strain
condition manifest forward flexion of the cervical spine of
15 degrees or less, or any ankylosis. In addition, at no
point during the period on appeal did the Veteran's chronic
neck strain condition manifest any periods of incapacitation
requiring physician prescribed bed rest. As such,
entitlement to an evaluation in excess of 20 percent
disabling for the orthopaedic manifestations of the
Veteran's chronic neck strain is denied.
Entitlement to separate compensable evaluations for
associated neurological components of the Veteran's back
conditions are not warranted. The preponderance of the
evidence does not reveal objective evidence of any
associated neurological disabilities associated with the
Veteran's back conditions. The Board acknowledges that the
Veteran has complained of pain radiating into her buttocks
and shoulders. The Board further acknowledges that upon
examination in October 2005 the Veteran was noted to have
deep tendon reflexes of the biceps, brachialis and triceps
were 2 out of 4; upon a separate examination in October 2005
the Veteran was diagnosed with bilateral buttocks pain and
it was opined that it was at least as likely as not related
to the Veteran's lumbar condition; upon examination in
December 2006 the Veteran's upper and lower extremity
reflexes were noted to be 2+/4 globally and symmetrically;
and upon examination in December 2007 upper extremity
strength was noted to be grossly within normal limits and
lower extremity strengths were 3/5 at the hips and 4/5
otherwise. However, examination in October 2005 revealed
that the Veteran's upper extremities were 4.5 out of 5
bilaterally secondary to pain in the Veteran's joints, there
was no pinprick or light touch deficits; a treatment note
dated in December 2005 revealed negative straight leg tests
and good deep tendon reflexes in the lower extremities; upon
examination in December 2006 the Veteran was noted to have
no radiating pain in the upper or lower extremities, no
sensory deficits, no motor deficits, and no bowel, bladder,
or erectile dysfunction, the straight leg raise was negative
bilaterally, and Babinsky was downgoing bilaterally; and
upon examination in March 2009 elbow flexion, elbow
extension, wrist flexion, wrist extension, finger flexors,
finger abduction, thumb opposition, hip flexion, hip
extension, knee extension, ankle dorsiflexion, ankle plantar
flexion, and great toe extension were all 5/5, muscle tone
was normal and there was no muscle atrophy, sensory
examination of the upper and lower extremities was normal to
vibration, pain, light touch, and position, reflexes of the
biceps, triceps, brachioradialis, knee jerk, ankle jerk and
plantar were normal. As such, the preponderance of the
medical evidence reveals that entitlement to separate
compensable evaluations for associated neurological
conditions are not warranted.
In reaching the decisions above the Board considered the
doctrine of reasonable doubt, however, as the preponderance
of the evidence is against entitlement to an evaluation in
excess of 20 percent disabling for lumbosacral strain and
entitlement to an evaluation in excess of 20 percent
disabling for chronic neck strain, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
B. Chondromalacia with Early Degenerative Joint Disease of
the Right Knee and Chondromalacia of the Left Knee
The Veteran seeks entitlement to an evaluation in excess of
10 percent disabling for chondromalacia and early
degenerative joint disease of the right knee and entitlement
to an evaluation in excess of 10 percent disabling for
chondromalacia of the left knee. The Veteran's current 10
percent disability ratings are pursuant to Diagnostic Codes
5099-5014. Hyphenated diagnostic codes are used when a
rating under one Diagnostic Code requires use of an
additional diagnostic code to identify the basis for the
evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code
5014, osteomalacia, is to be rated under Diagnostic Code
5003, degenerative arthritis. 38 C.F.R. § 4.71a. The
provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to
5263, provide the criteria for rating knee and leg
disabilities.
When range of motion findings do not support a compensable
evaluation under Diagnostic Codes 5260 and 5261, Diagnostic
Code 5003 provides that when the limitation of motion of the
specific joint involved is non-compensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint affected by limitation
of motion that is affected by degenerative arthritis or any
of the conditions listed in Diagnostic Codes 5013-5024,
expect 5017. See 38 C.F.R. § 4.71a, Diagnostic Code 5003.
In the absence of limitation of motion, a 20 percent
evaluation is granted where X-ray evidence shows involvement
of 2 or more major joints or 2 or more minor joint groups,
with occasional incapacitating exacerbations. 38 C.F.R. §
4.71a, Diagnostic Code 5003. The Veteran's left and right
knee disabilities currently receive separate 10 percent
ratings under Diagnostic Code 5099-5014, and individually
involve only her left or right knee, and not two or more
major or minor joints, and therefore she is not entitled to
a 20 percent evaluation for either of her knee disabilities.
In addition, as discussed below, there is no evidence of
record indicating that either of the Veteran's knees warrant
a compensable rating under the ratings for limitation of
motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5014,
5260-5261.
Under Diagnostic Code 5260, a noncompensable rating will be
assigned for limitation of flexion of the leg to 60 degrees;
a 10 percent rating will be assigned for limitation of
flexion of the leg to 45 degrees; a 20 percent rating will
be assigned for limitation of flexion of the leg to 30
degrees; and a 30 percent rating will be assigned for
limitation of flexion of the leg to 15 degrees. 38 C.F.R. §
4.71a, Diagnostic Code 5260.
Under Diagnostic Code 5261, a noncompensable rating will be
assigned for limitation of extension of the leg to 5
degrees; a 10 percent rating will be assigned for limitation
of extension of the leg to 10 degrees; a 20 percent rating
will be assigned for limitation of extension of the leg to
15 degrees; a 30 percent rating will be assigned for
limitation of extension of the leg to 20 degrees; a 40
percent rating will be assigned for limitation of extension
of the leg to 30 degrees; and a 50 percent rating will be
assigned for limitation of extension of the leg to 45
degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.
Normal range of motion of the knee is to zero degrees
extension and to 140 degrees flexion. See 38 C.F.R. §
4.71a, Plate II.
In October 2005 the Veteran complained of right knee
subpatellar tenderness. Physical examination revealed
negative anterior and posterior drawer tests and a negative
McMurray's test. The Veteran was noted to have left knee
subpatellar tenderness and lateral tenderness. No synovitis
and no edema were noted. In a treatment note, dated in
December 2005, the Veteran was reported to have equivocal
swelling of the right knee, no warmth or erythema or
effusion. In November 2006 the Veteran underwent a VA X-ray
examination of the knees. The X-ray revealed that the
osseous and articular structures of the knees were normal.
In December 2006 the Veteran was afforded a VA C&P joints
examination. Physical examination of the knees revealed
stable collaterals, anterior cruciate ligament, and
posterior cruciate ligament. The McMurray's and Apley's
tests were negative. There was patello-femoral crepitance
and medial joint line pain bilaterally. There was no
lateral joint line pain. The Veteran's gait was normal and
there was no ankylosis of the knees. There was pain with
deep knee flexion in both knees. The Veteran was diagnosed
with osteoarthritis of both knees. The examiner noted that
there was no weakened movement or incoordination in either
knee. There was excess fatigability with repeated exercise
and the Veteran lost 10 degrees of functional range of
motion in deep knee flexion bilaterally. The examiner
rendered the opinion that the Veteran was capable of working
without heavy lifting, squatting or frequent bending.
In a treatment note, dated in August 2006, the Veteran was
reported to complain of pain in the knees. Examination
revealed that the active range of motion of the Veteran's
knees was within normal limits and muscle strength was 3/5
in the knees. In a treatment note, dated in June 2007, the
range of motion of the Veteran's knees was measured at 135
degrees of flexion and 0 degrees of extension bilaterally
with 5/5 muscle power bilaterally. In a VA treatment note,
dated in August 2007 the Veteran was noted to have knee pain
and occasional swelling.
In March 2009 the Veteran was afforded a VA C&P joints
examination. The Veteran reported that her pain and
intermittent swelling of her knees had gotten worse since
the prior examination and that prolonged standing will
aggravate the condition. The Veteran was noted to be using
bracing to treat the conditions. The examiner noted that
there was no history of hospitalization, surgery, trauma to
the joints, and neoplasm. There was no deformity, giving
way, instability, weakness, incoordination, episodes of
dislocation or subluxation, locking episodes, or effusion of
either knee. There was pain, stiffness, decreased speed of
joint motion, and swelling of both knees. The Veteran's
gait was antalgic. There as not evidence of abnormal weight
bearing, loss of a bone or part of a bone, or inflammatory
arthritis. The knees were noted to have crepitus,
tenderness, guarding of movement, and clicking or snapping.
There was no mass behind the knee, grinding, instability,
patellar abnormality, or meniscus abnormality. Upon
physical examination the right knee revealed 130 degrees of
flexion and normal extension. The left knee revealed 130
degrees of flexion and normal extension. Pain was noted
with active motion. The pain was described as a "stretch"
sensation. There was evidence of pain following repetitive
motion; however, there was no additional limitation after
three repetitions of range of motion. The examiner
diagnosed the Veteran with bilateral knee chondromalacia.
The examiner noted that the Veteran's conditions severely
affected the Veteran's ability to perform sports, moderately
affected the Veteran's ability to perform shopping,
exercise, and traveling, mildly affected the Veteran's
ability to perform chores, and recreation, and did not
affect the Veteran's ability to perform feeding, bathing,
dressing, toileting, or grooming.
The Board finds that entitlement to an evaluation in excess
of 10 percent disabling is not warranted based upon range of
motion for either the Veteran's chondromalacia with early
degenerative joint disease of the right knee or
chondromalacia of the left knee. At no point during the
period on appeal did the Veteran's right knee or left knee
manifest in a limitation of flexion of the leg to 30 degrees
or less or a limitation of extension to 15 degrees or more.
As such, entitlement to an evaluation in excess of 10
percent disabling based upon limitation of the range of
motion of the Veteran's service-connected chondromalacia
with early degenerative joint disease of the right knee and
entitlement to an evaluation in excess of 10 percent
disabling based upon limitation of the range of motion of
the Veteran's service-connected chondromalacia of the left
knee is denied.
The Veteran has never been diagnosed with, nor is there any
medical evidence of record indicating, ankylosis of the left
or right knee, dislocated semilunar cartilage, symptomatic
removal of semilunar cartilage, impairment of the tibia and
fibula, or genu recurvatum. Therefore, Diagnostic Codes
5256, 5258, 5259, 5262, and 5263 are not for application.
See 38 C.F.R. § 4.71a.
In addition to ratings based on limitation of motion, a
rating may also be provided based on either recurrent
subluxation or lateral instability under 38 C.F.R. § 4.71a,
Diagnostic Code 5257; which assigns 10, 20, or 30 percent
ratings, depending on whether the instability or subluxation
is slight, moderate or severe respectively.
The words "slight," "moderate" and "severe" as used in the
various diagnostic codes are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence for
"equitable and just decisions." 38 C.F.R. § 4.6.
The Board notes that the objective medical evidence has
repeatedly failed to find any indication of instability or
subluxation. As such, separate compensable ratings are not
warranted based on either instability or subluxation in the
left knee or right knee.
In reaching the decisions above the Board considered the
doctrine of reasonable doubt, however, as the preponderance
of the evidence is against entitlement to an evaluation in
excess of 10 percent disabling for chondromalacia with early
degenerative joint disease of the right knee and entitlement
to an evaluation in excess of 10 percent disabling for
chondromalacia of the left knee, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
C. Extraschedular Consideration
The Board notes that if an exceptional case arises where
ratings based on the statutory schedules are found to be
inadequate, consideration of an "extra-schedular" evaluation
commensurate with the average earning capacity impairment
due exclusively to the service-connected disability or
disabilities will be made. 38 C.F.R. § 3.321(b)(1). The
Court has held that the determination of whether a claimant
is entitled to an extraschedular rating under § 3.321(b) is
a three-step inquiry, the responsibility for which may be
shared among the RO, the Board, and the Under Secretary for
Benefits or the Director, Compensation and Pension Service.
Thun v. Peake, 22 Vet. App. 111 (2008). The threshold
factor for extraschedular consideration is a finding that
the evidence before VA presents such an exceptional
disability picture that the available schedular evaluations
for that service- connected disability are inadequate. This
means that initially there must be a comparison between the
level of severity and symptomatology of the claimant's
service-connected disability with the established criteria
found in the rating schedule for that disability. If the
criteria reasonably describe the claimant's disability level
and symptomatology, then the claimant's disability picture
is contemplated by the rating schedule, the assigned
schedular evaluation is adequate, and no referral is
required. If the criteria do not reasonably describe the
claimant's disability level and symptomatology, a
determination must be made whether the claimant's
exceptional disability picture exhibits other related
factors such as those provided by the regulation as
"governing norms." 38 C.F.R. § 3.321(b)(1) (related factors
include "marked interference with employment" and "frequent
periods of hospitalization"). See id.
In this case, the medical evidence fails to show anything
unique or unusual about the Veteran's bilateral knee,
lumbosacral strain, and chronic neck strain disabilities
that would render the schedular criteria inadequate. The
Veteran has not been hospitalized for her disabilities and
her symptoms are mainly pain and reduction in range of
motion, which are specifically accounted for in the rating
criteria. Accordingly, extraschedular ratings for the
Veteran's lumbosacral strain, chronic neck strain, and right
and left knee conditions are not warranted.
II. TDIU
In order to establish entitlement to TDIU due to service-
connected disabilities, there must be impairment so severe
that it is impossible for the average person to secure and
follow a substantially gainful occupation. See 38 U.S.C.A.
§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. VA defined
substantially gainful employment as "employment at which
non-disabled individuals earn their livelihood with earnings
comparable to the particular occupation in the community
where the Veteran resides." See M21-MR, Part IV, Subpart
ii, Chapter 2(F)(24)(d). In reaching such a determination,
the central inquiry is "whether the Veteran's service
connected disabilities alone are of sufficient severity to
produce unemployability." Hatlestad v. Brown, 5 Vet. App.
524, 529 (1993). Consideration may be given to the
Veteran's level of education, special training, and previous
work experience when arriving at this conclusion, but
factors such as age or impairment caused by non-service-
connected disabilities are not to be considered. 38 C.F.R.
§§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361,
363 (1993).
The Board notes that marginal employment is not considered
to be substantially gainful employment. Marginal employment
generally shall be deemed to exist when a Veteran's earned
annual income does not exceed the amount established by the
U.S. Department of Commerce, Bureau of the Census, as the
poverty threshold for one person. Marginal employment may
also be held to exist, on a facts-found basis (includes but
is not limited to employment in a protected environment such
as a family business or sheltered workshop), when earned
annual income exceeds the poverty threshold. 38 C.F.R. §
4.16(a).
Total disability may or may not be permanent. Permanence of
total disability exists when such impairment is reasonably
certain to continue throughout the life of the disabled
person. Diseases and injuries of long standing which are
actually totally incapacitating will be regarded as
permanently and totally disabling when the probability of
permanent improvement under treatment is remote. 38 C.F.R.
§ 3.340.
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities,
provided that, if there is only one such disability, this
disability shall be ratable at 60 percent or more, and that,
if there are two or more disabilities, there shall be at
least one disability ratable at 40 percent or more, and
sufficient additional disability to bring the combined
rating to 70 percent or more. 38 C.F.R. § 4.16(a).
The Veteran's service-connected disabilities include the
following: total hysterectomy, currently evaluated as 50
percent disabling, effective October 1, 1997; depression
associated with lumbosacral strain, currently evaluated as
30 percent disabling, effective February 20, 2008;
lumbosacral strain, currently evaluated as 20 percent
disabling, effective October 1, 1997; chronic neck strain,
currently evaluated as 20 percent disabling, effective April
5, 2005; right ear hearing loss, currently evaluated as 10
percent disabling, effective October 1, 1997; chondromalacia
with early degenerative joint disease of the right knee,
currently evaluated as 10 percent disabling, effective
January 8, 1998; and chondromalacia of the left knee,
currently evaluated as 10 percent disabling, effective
February 19, 2004. The RO assigned a combined disability
evaluation of 80 percent, effective April 5, 2005, for these
service-connected disabilities.
The Board notes that the Veteran meets the schedular
criteria for TDIU pursuant to 38 C.F.R. § 4.16(a).
In a July 2006 treatment record, the Veteran's physician
noted that the Veteran was unable to work due to her
service-connected disabilities. In addition, the Board
notes that the Veteran is in receipt of Social Security
Administration disability benefits. However, after
examination in December 2006, the examiner rendered the
opinion that the Veteran was capable of working without
heavy lifting, squatting or frequent bending. In addition,
in June 2007 the Veteran underwent a VA outpatient
functional assessment. After examination the Veteran was
found to be able to perform sedentary jobs. After
examination in March 2009, a VA examiner noted that the
Veteran's knee conditions severely affected the Veteran's
ability to perform sports, moderately affected the Veteran's
ability to perform shopping, exercise, and traveling, mildly
affected the Veteran's ability to perform chores, and
recreation, and did not affect the Veteran's ability to
perform feeding, bathing, dressing, toileting, or grooming.
After examination in March 2009, a VA examiner noted that
the Veteran's back conditions had no effect on the Veteran's
ability to perform feeding, bathing, dressing, toileting,
and grooming, a mild effect on the Veteran's ability to
perform chores, shopping, and traveling, a moderate effect
on the Veteran's ability to perform exercise, and a severe
effect on the Veteran's ability to perform sports.
The Board finds that entitlement to TDIU is not warranted.
While the Veteran currently meets the schedular requirements
pursuant to 38 C.F.R. § 4.16(a) the preponderance of the
evidence reveals that the Veteran's service-connected
disabilities do not render the Veteran incapable of securing
or following a substantially gainful occupation. The Board
acknowledges that the Veteran is in receipt of Social
Security Administration (SSA) disability benefits. However,
the Board notes that although SSA findings may be relevant
to a claim for VA benefits, they are not binding on the
Board. See Anderson v. Brown, 5 Vet. App. 347, 353 (1993).
In addition, the Board acknowledges the opinion by a VA
physician, dated in July 2006, that the Veteran is
unemployable due to her service-connected disabilities;
however, the Board notes the opinion of the VA physician,
dated in July 2006, was not supported by any rationale and
that subsequent VA examinations, including a thorough
functional assessment, found that the Veteran was able to
perform sedentary jobs. As the preponderance of the
evidence is against a finding that the Veteran is unable to
secure or follow a substantially gainful occupation,
entitlement to a TDIU is denied. See Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
III. Duties to Notify and Assist
As provided for by the Veterans Claims Assistance Act of
2000 (VCAA), the VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126;
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper notice from VA must inform the claimant
of any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek
to provide; and (3) that the claimant is expected to provide
in accordance with 38 C.F.R. § 3.159(b)(1). This notice
must be provided prior to an initial unfavorable decision on
a claim by the agency of original jurisdiction (AOJ).
Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006);
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In a claim for an increased evaluation, the VCAA requirement
is generic notice, that is, the type of evidence needed to
substantiate the claim, namely, evidence demonstrating a
worsening or increase in severity of the disability and the
effect that worsening has on employment, as well as general
notice regarding how disability ratings and effective dates
are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270
(Fed. Cir. 2009).
Here, the duty to notify was not fully satisfied prior to
the initial unfavorable decision on the claim by the AOJ.
Under such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."
Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed.
Cir. 2006) (where notice was not provided prior to the AOJ's
initial adjudication, this timing problem can be cured by
the Board remanding for the issuance of a VCAA notice
followed by readjudication of the claim by the AOJ) see also
Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the
issuance of a fully compliant VCAA notification followed by
readjudication of the claim, such as an SOC or SSOC, is
sufficient to cure a timing defect).
In this case, the VCAA duty to notify was satisfied by way
of letters sent to the appellant in July 2006 and October
2007. The Board notes that the letter dated in October 2007
was sent subsequent to the initial AOJ decision. The
letters informed the appellant of what evidence was required
to substantiate the claims and of the appellant's and VA's
respective duties for obtaining evidence. Although the
second notice letter was not sent before the initial AOJ
decision in this matter, the Board finds that this error was
not prejudicial to the appellant because the actions taken
by VA after providing the notice have essentially cured the
error in the timing of notice. Not only has the appellant
been afforded a meaningful opportunity to participate
effectively in the processing of her or his claim and given
ample time to respond, but the AOJ also readjudicated the
case by way of a Statement of the Case issues in December
2007 after the notice was provided. For these reasons, it
is not prejudicial to the appellant for the Board to proceed
to finally decide this appeal as the timing error did not
affect the essential fairness of the adjudication.
VA has a duty to assist the Veteran in the development of
the claim. This duty includes assisting the Veteran in the
procurement of service medical records and pertinent
treatment records and providing an examination when
necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
The Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). The RO has obtained all pertinent VA
treatment records. The Veteran was provided an opportunity
to set forth her contentions during the hearing before the
undersigned Veterans Law Judge. The appellant was afforded
VA medical examinations in October 2005, December 2006, and
March 2009. Significantly, neither the appellant nor her
representative has identified, and the record does not
otherwise indicate, any additional existing evidence that is
necessary for a fair adjudication of the claim that has not
been obtained. Hence, no further notice or assistance to
the appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
Entitlement to an evaluation in excess of 20 percent for
lumbosacral strain is denied.
Entitlement to an evaluation in excess of 20 percent for
chronic neck strain is denied.
Entitlement to an evaluation in excess of 10 percent for
chondromalacia with early degenerative joint disease of the
right knee is denied.
Entitlement to an evaluation in excess of 10 percent for
chondromalacia of the left knee is denied.
Entitlement to a TDIU is denied.
____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs